Earlier this month, a jury in St. Louis, Missouri rendered a $462 million verdict against a trailer manufacturer, Wabash National Corporation, finding the company responsible for the deaths of two young fathers killed when their car went underneath the rear of a trailer.
The families were represented at trial by the Simon Law firm.
The trial lasted two weeks and the jury deliberated for about three hours before finding in favor of the plaintiffs.
Taron Tailor, 30, and his passenger, Nicholas Perkins, 23, were killed instantly when the Volkswagen CC Tailor was driving rear-ended a trailer made by the Wabash Corporation on May 19, 2019.
Upon impact, the trailer’s rear impact guard tore off and allowed their vehicle to go underneath the trailer.
The accident, known as an underride crash, happened at about 2:30 p.m. on a Sunday along Interstate 44/55 near the 7th Street exit in St. Louis.
The National Highway Traffic Safety Administration (NHTSA) defines truck underride crashes as collisions in which a car slides under the body of a truck.
It is estimated that between 15 percent to 20 percent of fatal accidents involving trucks are underride crashes, which often kill drivers and passengers through decapitation.
Tailor and Perkins were decapitated in the 2019 crash.
Perkins left behind a 2-year-old daughter. Tailor’s wife was pregnant at the time of his death.
At trial, the plaintiffs proved Wabash ignored decades of research and warnings about the failures of its rear impact guards, which are supposed to prevent vehicles from underride.
“These children had a right to a father, but because of a decision Wabash made in a boardroom, all of that was taken from them,” Johnny M. Simon told the jury during closing arguments. “They were robbed of a lifetime of love.”
Some of the evidence presented at trial dated to the infamous 1967 underride crash that killed Hollywood actress Jayne Mansfield.
During closing arguments, attorney Johnny Simon told jurors Wabash failed to build safer rear underride guards for 30 years, and to do so would have cost Wabash about $15 million a year.
The jury awarded punitive damages at $450 million – an amount Simon estimated the corporation saved by failing to install the safer guards for three decades.
Compensatory damages included $6 million to the Perkins family and $6 million to the Tailor family.
A recent study by the Government Accountability Office found inconsistencies in how police report these crashes, exposing how undercounted underride crashes are and how the true number of people killed or injured in these types of accidents is unknown.
Based on 2024 data, the Simons showed that there are at least 14,350 known fatalities involving rear underride crashes – a number that excludes deaths caused by side underride – but the number is likely much higher.
The Simons also successfully argued that trucking industry leaders have been at the forefront of lobbying efforts to prevent federal regulations from requiring rear guards be made to prevent underride at survivable speeds.
Marianne Karth testified on the first day of the trial and told the jury about the crash that took the lives of her two daughters.
In May 2013, Marianne Karth was driving three of her nine children from North Carolina to Texas.
Her two girls – AnnaLeah and Mary – were in the back seat – and one of her sons was in the front seat. A truck was coming up from behind too quickly, not slowing down. The trucker hit the Karth vehicle and spun it around, sending them backwards into the back of a tractor trailer in front of them. The back seat went under the truck.
Karth’s two daughters – AnnaLeah, 17 and Mary, 13 – were in the back seat. AnnaLeah died instantly and Mary a few days later from her injuries.
Karth and her husband Jerry and other families who have suffered lost loved ones to truck underrides have been working tirelessly for years to try and get the federal government to mandate a stronger guard – known as toughguards – to be placed at the rear of large trucks, as well as side guards and front guards to prevent smaller vehicles from going under the trucks and killing its passengers. (Karth’s website – annaleahmary.com – serves as a hub for underride safety activism.)
Because of the advocacy of the families, six of the truck makers have agreed to make the toughguards standard equipment. But Karth says that two – Wabash National and Kentucky Trailer – only make it optional and not standard.
“In 2022, NHTSA finished that rear impact guard rule. It was an update of the 1998 rear guard rule,” Karth told Corporate Crime Reporter in an interview last week. “But the 2022 rule fell short of what they should have done. The 2022 rule does not require the guard to prevent underrides all the way across the back of the trailer. For example, it doesn’t not require them to prevent what is called 30 percent offset. It requires the guard to stop a car if it hits mid center into the back of the trailer or if it has 50 percent overlap one way or another. But the rule does not require strong enough protection for vehicles hitting on the side of the back of the trailer.”
“The Insurance Institute for Highway Safety for a number of years did crash testing on the eight largest trailer manufacturers. And they showed that they did not meet the 1998 standard. We sent letters to those manufacturers. And we pointed out the Manac in Canada improved their guards and were able to prevent those offset crashes at the edge of the back of the trailer. We asked all of them to improve their guards. And all eight major trailer manufacturers and an additional one – Kentucky Trailer – received the IIHS Toughguard award for being able to stop cars all the way across the back of the trailer at 35 miles per hour.”
All the manufacturers received the Toughguard Award – that means they are all doing better than what the law requires. Why is there an issue?
“The 2021 law gave the Secretary of Transportation the discretion to require that 30 percent offset. But he decided against requiring that. Seven of those nine trailer manufacturers are selling it as standard on new trailers that they produce.”
“There are around 200,000 to 250,000 new trailers sold in the United States every year. But two of those companies are merely selling it as an option. If they charge more for the stronger guard, their customer may choose for cost reasons the weaker guard. Those two companies are Wabash National and Kentucky Trailer.”
What percentage of the 250,000 per year are they producing?
“I do know from a recent product liability lawsuit, of the 50,000 trailers they made in 2022, probably 90 to 95 percent of those were the weaker guard, not the toughguard. And trailers have a long life. So those will be on the road for a long time and people will crash into them, go under and die.”
How many tractor trailers are on the road now?
“I’m not sure anybody knows exactly. But it’s over two million.”
What percentage of those currently have the toughguard?
“Nobody has an accurate record.”
But maybe about ten percent?
“Maybe. But the new guards started selling in 2016, 2018 and 2020. They are gradually being introduced into the fleet. But because it’s not required by law, there will be new ones that won’t meet the toughguard standard.”
How many underride deaths are there per year?
“NHTSA’s Fatality Analysis Reporting System (FARS) is inaccurate. The Government Accountability Office (GAO) has confirmed that it’s an undercount. As of a couple of years ago, only 17 of the 50 state crash reports had an underride check box. Investigators are normally looking for the cause of the crash, not necessarily what caused the deaths, the underride is not always recorded. But even with the undercount, NHTSA reports 200 rear underride deaths and 600 side, rear and front underride deaths per year.”
“But take our case, the FARS report for Georgia in 2016 indicated one rear underride death, and both of my daughters died. It could have been a different case and they didn’t count my two children who died in an underride in Georgia in that year.”
“Lois Durso lost her daughter in a side underride in 2004 – it was a clear underride. Lois’ daughter’s hair was on the tractor trailer’s tire. But when we got the FARS report for that case, it said – no underride or override noted. Same for the death of Joshua Brown, who in 2016 went under a tractor trailer from the side in a Tesla. His car came out on the other side. The FARS report said no underride or override noted. His car went under the tractor trailer and the top of his car was sheared off and he died.”
It’s hard to find a bright side here, but because of the efforts of you and your husband, the companies have standardized the toughguards.
“Somebody like you can see the bright side. I’m so much aware of all that still needs to be done. But yes, we are very thankful.”
That wasn’t so much the government but you and your husband and the other families.
“And the Insurance Institute for Highway Safety with their research.”
Was the government a factor?
“The trailer companies were already putting the toughguards on their trucks long before NHTSA did anything about it. Joan Claybrook called what NHTSA did regulatory malpractice.
Tell us about your interactions with the Secretary of Transportation Pete Buttigieg and why he hasn’t acted on this?
“We have never been able to meet with him. We have invited him several times to our crash tests. And we have requested meetings with him, but we have never been able to have a conversation with him. I have no idea to what extent he understands the problem. I would love to sit down and speak with him.”
“Back in 2021, we called on President Biden to appoint an ombudsman at the Department of Transportation. In 2022, I sat down with Senator Lujan and shared with him a draft of our bill for an ombudsman. And he said – this could work. In the spring of 2024, he introduced the National Road Work Safety Advocate Bill. And it was also introduced by Congressman Cohen in the House. As a stand alone bill, it’s not going anywhere. But I’m hoping that in the upcoming reauthorization bill it will be included.”
“I did ask Secretary Buttigieg to just establish that position himself. The fact is we don’t have someone within the Department to raise these important safety questions. NHTSA is not being held accountable.”
As for the jury verdict against Wabash, Karth says that “if the trucking industry continues to oppose these safety standards, then it will be left to jurors to bring some form of justice for the families.”
“There was a poster outside the courtroom that said – jurors make justice work for all of us. And the plaintiff’s attorney said to the jurors – you have more power in your hands today than you ever have had in your lives.”
“Put aside all of the work we have done to raise public awareness. It doesn’t do any good because NHTSA is not accountable. And the industry does whatever it wants to do. Aren’t jury verdicts the only way to reach these companies?”
Did the issue of retrofitting come up at trial?
“Aaron Kiefer testified about his rig retrofit (trailerguard.com). They showed the video of his rig retrofit that was attached to an older trailer and it stopped underrides at 39 miles per hour.”
Are there other tort lawsuits ongoing now?
“There are others, not just rear, but also sides. The family in the Wabash case chose to have it go to a trial and not settle out of court. They wanted it to make a public impact.”
What were they offered to settle the case?
“I do not know. In 2019, a jury in New Mexico awarded the family of Riley Hein $42 million. Evidence came out in that case that trailer manufacturers have a joint defense agreement. They work together to oppose regulations and to defend lawsuits.”
“They have a product liability defense committee. Why don’t they put their resources into safety instead so they don’t have to worry about it?”
“The attorney in our case thought it would be difficult to win a product liability lawsuit because the trailer company met the federal standard.”
And that was Wabash’s defense – we met the federal standard.
“Yes. But John Simon was good at bringing a ton of evidence that showed that there was a rear guard rule in the 1970s that would have required a guard twice as strong as the one that came out in 1998. Decades ago, there could have been a stronger guard. But it wasn’t required. The companies could have designed a stronger guard.”
Democrats are known for regulation and Republicans for deregulation. But that doesn’t seem to be the case here.
“It’s been very difficult no matter who is in office to solve this problem once and for all. Why do people have to keep dying? How many crash tests do we have to do? We have already proven that the technology is effective. And we’ve proven that people are dying and continuing to die. What’s it going to take? I don’t know how people sleep at night. I don’t know how Wabash continued to sell these trailers? How can they even sleep at night knowing they were doing that?”
“We met with the CEO of Wabash at the 2017 trucking show. We sat down with him and asked him – when are you going to make this standard? He said they intended to, but that they needed to get supplies. And apparently there was a high strength steel from Sweden they needed. But the other trailer makers were able to sell a stronger guard.”
When did they put the toughguard in as an option?
“They had it ready to go in February 2016. But that was just as an option. The plaintiffs attorneys showed their patent which specifically said that other than high strength steel materials could be used. The attorney asked them, if NHTSA had mandated the protection, would you have met the standard. They said – yes.”
“But they made a business decision to continue to operate with the guard only as an option.”
(For the complete Interview with Marianne Karth, see page 12.)